Medical practitioner ­ Gross carelessness ­ Prescribing drugs of addiction without proper authority ­ No issue as to clinical justification ­ Appropriate penalty ­ Whether suspension of registration or deregistration called for

Medical Act 1894 (WA), s 13, s 13(3)

Poisons and Therapeutic Goods Act 1966 (NSW)

Poisons Act 1964 (WA), s 5, s 23, s 23(2), s 23(2)(d), Sch 8

Poisons Regulations 1965 (WA), reg 51F(1)

Respondent fined $10 000, reprimanded and ordered to pay the applicant's reasonable costs

1 The Medical Board of Western Australia brought disciplinary proceedings against Dr Behzad Alizadeh in relation to his prescription of drugs of addiction specified in Sch 8 of the Poisons Act 1964 (WA) in contravention of the requirements of the Poisons Act 1964 and the Poisons Regulations 1965 (WA). Dr Alizadeh admitted that he was guilty of gross carelessness in relation to the prescription of drugs of addiction to nine patients. The Tribunal was called upon to determine the appropriate penalty in the light of the doctor's admissions.

2 The Board argued that, in view of the seriousness of the allegations, and the circumstances in which the drugs were prescribed, the appropriate penalty was deregistration, or at least a period of suspension of Dr Alizadeh's registration. Dr Alizadeh accepted that the matters were serious, but argued that the public interest would be adequately served by the imposition of a fine, and, if necessary, a reprimand.

3 The Tribunal considered the evidence surrounding the treatment of the patients concerned, the nature of the conduct complained of, Dr Alizadeh's explanation for his conduct and Dr Alizadeh's personal circumstances. Whilst accepting that Dr Alizadeh's breaches of the acting regulations were a serious matter, and his explanation was most unsatisfactory, the Tribunal concluded that, in all the circumstances, the public interest would be served by imposing a reprimand and a fine of $10 000, being the maximum fine available under the Medical Act 1894 (WA), and ordering him to pay the Board's reasonable costs of the proceedings.

4 In its application to the Tribunal, the Medical Board of Western Australia (the Board) alleged that Dr Alizadeh was guilty of infamous or improper conduct in a professional respect, or alternatively of gross carelessness and incompetency, in that he prescribed drugs of addiction as defined in s 5 of the Poisons Act 1964 (WA) (Poisons Act) and specified in Sch 8 of the Poisons Act to a number of patients. The proceedings were commenced in March 2006. The matter was initially referred to mediation which proved to be unsuccessful. An amended application was filed on 2 August 2006. On 5 September 2006, the respondent filed a response to the amended application. He denied that he was guilty of infamous or improper conduct, or incompetency, but admitted gross carelessness. In November 2006, the Board determined that it would accept the admission of gross carelessness and no longer pursue its application to categorise the conduct as infamous or improper in a professional respect, or as incompetency.

5 The Tribunal accepts that the conduct the subject of the allegations, and the circumstances in which it occurred is properly categorised as gross carelessness. In reaching that conclusion, we note that gross carelessness involves a significantly higher degree of carelessness and want of due care than that which would satisfy the description of negligence for the purpose of civil proceedings - Callaghan v The Queen [1952] HCA 55; (1952) 87 CLR 115 at 119-124. We adopt what was said by Owen J in Jemielita v Medical Board of Western Australia (Unreported, Supreme Court of Western Australia; Full Court; Library No 920584; 13 November 1992) that, in the context of s 13 of the Medical Act 1894 (WA) (Medical Act) it is necessary that the carelessness or incompetency should assume a scale of gravity which is sufficiently serious to warrant denunciation by professional colleagues of good repute and competence and have reached the scale that such other practitioners regard as intolerable and deserving of punishment and disciplinary action as falling so short of an acceptable standard of clinical care that disciplinary action is warranted for the protection of the public. Gross carelessness involves unacceptable conduct without any intentional wrongdoing on the part of the practitioner.

6 The allegations against Dr Alizadeh concern nine patients. They fall into four categories.

Category 1 - prescribing Sch 8 drugs for more than 60 days without prior written authorisation

7 Pursuant to s 23(2)(d) of the Poisons Act, a doctor is entitled to prescribe drugs of addiction to a patient for a period of 60 days without written authorisation from the Commissioner of Health. In relation to six patients, Dr Alizadeh accepts that he prescribed Sch 8 drugs for a period in excess of 60 days without first obtaining written authorisation from the Commissioner of Health. Doing so contravenes reg 51F(1) of the Poisons Regulations 1965 (WA) (Regulations). The details of his prescriptions beyond the initial period of 60 days are as follows:

Category 2 - prescribing Sch 8 drugs for more than 60 days after being advised to obtain prior written authorisation

8 In respect to five of those six patients, a delegate of the Commissioner of Health wrote to the respondent advising him that he had been prescribing drugs of addiction specified in Sch 8 for a period greater than 60 days. The letters were in a standard form and read:

"Re [Patients Name and Address]

During routine monitoring of prescriptions it was noted that you appear to have been prescribing [drug name] for this patient for a period greater than 60 days.

With the aim of minimising the development of drug dependence, it is a stipulation of the Poisons Act Regulations [sic] that treatment of a patient with drugs of addiction for more than 60 days be authorised by the Commissioner of Health. If this patient still requires long term treatment with a drug of addiction, an authorisation should be applied for. Please note that a copy of a specialist's report regarding the patient's condition and need for such treatment may be requested.

An application form is enclosed; should you require more of these forms, please telephone ..."

9 In relation to patient A, letters to that effect were sent on 21 June 2001 and again on 1 August 2001. Between 10 August 2001 and 2 November 2001, and following receipt of the letters from the Commissioner of Health , the respondent prescribed Sch 8 drugs to patient A as follows:

10 On 24 October 2003, the Commissioner of Health wrote to the respondent to the same effect in relation to patient B. On 31 October 2003, Dr Alizadeh prescribed a quantity of 100 codeine phosphate 30 mg tablets to patient B, notwithstanding having received the letter of 24 October 2003.

11 On 23 March 2001, and again on 25 June 2001, similar letters were written in relation to patient C. Notwithstanding those letters, between 10 April 2001 and 24 January 2002, the respondent prescribed the following Sch 8 drugs to patient C without prior written authorisation from the Commissioner of Health.

12 On 19 March 2002, a similar letter was written in relation to patient D. Between 27 March 2002 and 9 September 2002, notwithstanding receipt of those letters, Dr Alizadeh prescribed the following Sch 8 drugs to patient D without prior written authorisation.

13 On 19 March 2002, a letter to similar effect was sent by the Commissioner of Health to the respondent in relation to patient F. Between 26 June 2002 and 5 April 2004 Dr Alizadeh continued to prescribe Sch 8 drugs to patient F as follows:

Category 3 - prescribing Sch 8 drugs after authority expired

14 In October 2002, the respondent applied for and was granted, authority to prescribe morphine sulphate 30 mg injections for patient D for a period of three months, and on 24 November 2003, the Commissioner of Health's delegate extended the authority for a further six months. The authority ultimately expired on 24 November 2003.

15 Between 15 June 2004 and 8 November 2004, Dr Alizadeh issued five prescriptions for Sch 8 drugs, notwithstanding the expiry of the authority. The details of the prescription were as follows:

16 On 19 November 2003, the Commissioner of Health's delegate provided an authority to Dr Alizadeh to prescribe morphine sulphate 100 mg tablets or capsules to patient E. On 19 May 2004, that authority expired. On the same day Dr Alizadeh applied for an extension of the authority for a further six months, and that extension was granted on 16 June 2004, for a further six months. However, on 2 June 2004, when there was no operative authority in relation to patient E, Dr Alizadeh prescribed a quantity of 20 morphine SR 100 mg tablets.

Category 4 - prescribing Sch 8 drugs when authority revoked

17 On 21 December 2004, after several invitations to discuss his prescribing rights, which appear not to have been taking up, a delegate of the Commissioner of Health wrote to Dr Alizadeh advising him that the authority conferred on him by subsection 23(2) of the Poisons Act to prescribe drugs of addiction was entirely revoked effective from that date. Notwithstanding that revocation, on 10 January 2005, Dr Alizadeh prescribed 100 mg codeine phosphate 30 mg tablets to patient A. On 18 January 2005 he prescribed 100 codeine phosphate 30 mg tablets to patient G. On three occasions, being 29 December 2004, 21 January 2005 and 15 February 2005, Dr Alizadeh prescribed quantities of codeine phosphate 30 mg tablets to patient H. On 20 January and 21 February 2005, Dr Alizadeh prescribed methylphenidate 10 mg tablets to patient I.

18 The prescription of codeine phosphate and methylphenidate, both being Sch 8 drugs, constituted a contravention of s 23 of the Poisons Act.

19 The respondent accepts that his conduct amounts to gross carelessness, and does not seek to justify it. He acknowledges that he has failed to take adequate steps to inform himself of the relevant provisions of the regulations and Sch 8.

20 As to the first category of cases, Dr Alizadeh says that he simply did not appreciate the importance of the requirement to seek the Commissioner of Health's authorisation to continue to prescribe Sch 8 drugs for more than 60 days. Nor did he appreciate the seriousness of his failure to do so. He says that, when he initially started to prescribe Sch 8 drugs, he did so with the intention that they would be prescribed on a short term basis to treat the various patients' pain symptoms. Furthermore, he failed to closely monitor the periods of time for which he had been prescribing Sch 8 drugs to the patients.

21 In relation to the category 2 complaints, Dr Alizadeh acknowledges that he did not take the letters seriously enough. He says he viewed the letters as standard "reminder" type letters that were routinely sent out by the Department of Health to doctors. He did not anticipate the long term continuation of prescription of the drugs to the particular patients. In relation to patient A, and patient B, to whom he prescribed codeine phosphate, he says that he did not realise that codeine phosphate was a drug of addiction listed in Sch 8. That belief appears to be borne out by a note in patient A's notes on 10 January 2005, following revocation of Dr Alizadeh's Sch 8 prescribing rights, which reads "needs MS Contin, explained not allowed" followed by a note of the prescription of codeine phosphate tablets.

22 In relation to the category 3 allegations, his explanation in relation to patient D was that he anticipated that patient D's problems would resolve without lengthy ongoing administration of Sch 8 drugs, and because he did not appreciate the seriousness of prescribing without the appropriate authority, he did not think it necessary to apply for that authority. In relation to patient E, the prescription identified occurred after an application for an extension of the authority was sought, but before it was granted.

23 In relation to the category 4 allegations, Dr Alizadeh's explanation is that he did not appreciate that codeine phosphate was a Sch 8 drug and thus believed he was at liberty to prescribe that drug. He supports that belief on the basis that Panedeine Forte, which is not a Sch 8 drug, has the same amount of codeine as the codeine phosphate tablets he was prescribing.

24 There is no allegation made against Dr Alizadeh that his prescription of the Sch 8 drugs lacked any clinical justification or that, in a clinical sense, he over prescribed the drugs concerned. Although counsel for the Board made criticisms of the very limited notes recording the treatment of the various patients, there is no allegation against him related to his recording of notes, nor the management of the patients concerned.

25 It is apparent from the review of the patient's records that these patients were long term patients with significant and ongoing medical problems, usually associated with significant pain states. By way of generalisation it is apparent that the prescription of Sch 8 drugs occurred only after other attempts at management of the symptoms had proved ineffective. We accept the respondent's counsel's submission that this is not a case of "willy nilly prescribing", but a situation concerning management of difficult medical problems.

26 Dr Alizadeh, through his counsel, was at pains to point out, and we accept, that this is not a case involving some philosophical objection to the objectives of, an underlying purpose, of the provisions of the person's act and regulations. Nor is it a case where Dr Alizadeh sought to avoid scrutiny of his prescribing habits. It is observed that, when application was made for authority to continue administering Sch 8 drugs, that authority was granted.

27 The penalties available to the Tribunal, under s 13(3) of the Medical Act, include the removal of the practitioner's name from the register, suspension from registration for a period not exceeding 12 months, a fine not exceeding $10 000, and a reprimand. As the Tribunal has regularly observed, the legal principles upon which professional disciplinary penalties should be imposed were explained by Owen J in Jemielita at 140-142 where he said:

"The primary consideration is the public interest. The consequence of an adverse finding is drastic for the practitioner. The purpose of providing such a drastic consequence is not punishment of the practitioner as such, but protection of the public. The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules and indifferent to rudimentary professional requirements.

There is also a need to maintain the high standards and good reputation of the profession generally in the eyes of the community. A further consideration is the need to deter others who may be of a like mind to transgress in the future. In applying these considerations a tribunal must also bear in mind the warning ... :

'There is something more important than the standing of a profession about which the counsel is naturally and properly concerned. There is the right of every man to earn his living in whatever way he chooses unless by the law or by his own voluntary submission his way is taken from him.'

There is one final matter of a general nature which I should mention. The respondent has a wide discretion in relation to penalties. The mere fact that there has been a finding of infamous conduct or of gross carelessness or incompetency, does not mean that any particular penalty must follow as of course. An act or omission may constitute infamous conduct but that does not necessarily mean that striking off is the appropriate penalty. The respondent is required to consider all of the circumstances surrounding the act or omission and to exercise the discretion accordingly."

28 In submitting that Dr Alizadeh's name should be removed from the register the Board relied on decisions in other jurisdictions where that penalty has been imposed. In Re Susan Catchlove and The Medical Practice Act (Unreported, Medical Tribunal of New South Wales; 8 February 2006) the Medical Tribunal of New South Wales ordered that the practitioner's name be removed from the register and made an order that she not be permitted to apply for re-registration for a period of two years. That penalty was imposed following a conclusion that Dr Catchlove's conduct "demonstrated a completely reckless indifference to her obligations as a doctor". The complaint against her involved a total of 24 patients in respect of whom excessive and inappropriate prescription of various drugs had occurred. The case had some common factual aspects with the present matter. In some cases there had been prescription for periods exceeding the two months allowed without the necessary authority under the Poisons and Therapeutic Goods Act 1966 (NSW). The Tribunal expressed the view that that conduct involved "quite a serious breach of the provisions of the law relating to drugs of addiction and ... would constitute misconduct in itself". The decision is however distinguishable in a significant respect. That is, in all cases, the allegation was made and established that she failed to exercise responsible medical judgment as to whether it was appropriate to issue the prescriptions, and prescribed in quantities and for a period in excess of recognised therapeutic standards of what was appropriate in the circumstances. In most cases there was an allegation that the practitioner knew or ought to have known that the drugs so prescribed were being or were likely to be abused, and in some cases the prescribing was contraindicated by reason of a patient's history of drug dependency. Those elements of the complaint against Dr Catchlove form no part of the allegations against Dr Alizadeh.

29 Reliance was also placed on the decision of the Medical Tribunal of New South Wales in Re Dr Dietrich Stoermer and the Medical Practice Act 1992 [2004] NSWMT 5. That case too involved the registration of the medical practitioner following a conclusion of a demonstration of "a deliberate departure from accepted standards, or an indifference to the requirements applying to registered medical practitioners when dealing with addicted patients, and, thus an abuse of the privileges which accompany registration as a medical practitioner". Again, the allegations in relation to eight patients included allegations that the medical practitioner had failed to exercise responsible medical judgment as to whether it was appropriate to issue the prescriptions, and prescribing in circumstances where the practitioner knew or ought to have known that the drugs concerned were likely to be abused. Accordingly, the same distinction between the present case and the Stoermer case exists.

30 The New South Wales Court of Appeal decision in Spicer v New South Wales Medical Board and Ors (Unreported, New South Wales Court of Appeal; CA 3 of 1981; 19 February 1981), involved prescription of drugs of addiction to persons whom the practitioner believed were addicts, and prescribed in amounts exceeding recognised therapeutic standards of what was proper or medically appropriate. Again the prescriptions were made in circumstances where it was known to the practitioner that the drugs were likely to be abused. The Court of Appeal noted the Medical Tribunal's conclusion that "the applicant had prescribed drugs to a reckless extent and that by his actions he had undoubtedly released into the community large quantities of drugs which had a significant potential for harm" (at 5). The Court of Appeal upheld the Tribunal's decision to suspend the practitioner for a period of a year and to remove his rights to prescribe certain drugs.

31 In Tarvydas v The Medical Board of Western Australia (Unreported, Supreme Court of Western Australia; Library No 990198), Wheeler J, in refusing an application for extension of time to appeal from a decision of The Medical Board of Western Australia, noted that, in that case, the reason the medical practitioner had exceeded the 60 day period for prescribing Sch 8 drugs, was that:

"He thought that if he sought the relevant authorisation from the Department to continue prescribing, that his patients would be regarded as addicts (while he thought there were not), and that he would be subject to what he considered to be inappropriate supervision in respect of the treatment of those patients. It was open to the Board to find, as it apparently did, that this was a deliberate flouting of regulations imposed for the control of dangerous substances which occurred because Dr Tarvydas disagreed with the policy of the Department and wished to avoid certain aspects of the operation of the regulations. This is an attitude which aggravates the seriousness of the conduct."

32 In relation to the prescription of drugs in excess of the permitted period, the Board had imposed a suspension from practice for a period of six months. There is no element of "deliberate flouting" of the regulations in this case. While Dr Alizadeh's failure to appreciate the seriousness of his obligations under the Poisons Act and Regulations is a matter of serious concern, it does not, in our view, involve the same degree of aggravation of the seriousness of the conduct as would a deliberate flouting of the Regulations based upon some disagreement with the underlying purpose and philosophy of them.

33 In our view, while the failure by Dr Alizadeh to have proper regard to his obligations under the Poisons Act is a very serious matter, the public interest does not necessarily require that Dr Alizadeh should be suspended from practice nor that his name be removed from the register. Dr Alizadeh initially graduated in 1974 in Tehran and subsequently qualified in Iran as a specialist paediatrician. Apparently because of circumstances in Iran, he left in 1988, and after a brief period in Pakistan, arrived in Perth in 1991. He then undertook the courses necessary to qualify for registration as a medical practitioner in Western Australia, which he completed in 1994, before then being employed as an intern at Royal Perth Hospital for one year. He began practising in his present practice, of which he is now a partner, in 2001. We accept that it is a busy practice, and Dr Alizadeh is involved in the treatment of hundreds of patients. We were told, and we accept, that he provides a service to many Iranian patients with limited English who may find difficulty in finding another Iranian speaking doctor. We were told, and we accept, that Dr Alizadeh has significant financial commitments, and would, if suspended, lose the practice he has worked over many years to establish. The financial impacts would, we were told, and we accept, be quite devastating for him.

34 The Tribunal's function is to identify and impose a penalty which serves the public interest. Sometimes the imposition of a penalty which meets that objective has the unavoidable consequences which, if punishment were the consideration, might appear to be disproportionate. However, in this case, we are satisfied that a fine of the maximum amount permissible under the legislation, namely $10 000, a reprimand, and an order that Dr Alizadeh meet the Board's reasonable costs of the proceedings, will adequately reflect the seriousness of the conduct, in the circumstances in which it occurred. Dr Alizadeh's right to prescribe Sch 8 drugs has been withdrawn, and we accept his indication that, even if it were restored, he does not, in the light of events the subject of these proceedings, have any intention of prescribing Sch 8 drugs in the future. He has not prescribed Sch 8 drugs since February 2005.

35 Our attention was drawn to the fact that Dr Alizadeh was recently found guilty of improper conduct in a professional respect by this Tribunal differently constituted - see Medical Board of Western Australia and Alizadeh [2007] WASAT 52. At the time this matter was heard, no penalty had been imposed in relation to that finding. Counsel for the Board suggested that, whilst that decision had an entirely different factual context, and related to conduct which, co­incidentally, occurred on 21 February 2005 (the last of the dates of prescription the subject of these proceedings) the finding indicated a general propensity on the part of Dr Alizadeh not to follow proper clinical procedures. In our view, given that the conduct the subject of the other proceedings occurred after all of the conduct the subject of these proceedings (save perhaps the last prescription) and that the other matter was quite unrelated to the prescription of drugs, we do not accept that there is, in any real sense, a common theme between the two matters. We do not consider that the finding in [2007] WASAT 52 has any bearing on the penalty that should be imposed in this case.

36 Dr Alizadeh opposed an order for costs being made on the basis of the financial hardship that he has suffered, or will suffer, by reason of having to meet his own costs associated with this application. In making that submission, the respondent acknowledges the general position adopted by the Tribunal in relation to costs in vocational regulatory proceedings, as explained in Medical Board of Western Australia and Roberman [2005] WASAT 118. For the reasons there explained, a successful prosecution will usually lead to an order for costs being made in favour of the regulatory authority. It is inevitable that the burden of such an order will result in some degree of hardship to a respondent, unless, as may sometimes be the case, the burden falls on an insurer. That is not a reason to depart from the general rule. The liability for costs forms a significant part of the disincentive to conduct of this nature, and of the demonstration of the seriousness of the conduct, which lead the Tribunal to the conclusion that the public interest did not demand that the respondent's registration be suspended.

37 For the foregoing reasons, the Tribunal orders that:

1. The respondent pay a fine in the sum of $10 000 within 28 days of the date of these reasons.
2. The respondent is reprimanded.
3. The respondent to pay the applicant's reasonable costs to be agreed, or if not agreed, to be assessed by the Tribunal.

I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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